Features – An Introduction to New Zealand Law & Legal Information 2002

Margaret Greville is the Law Librarian at the University of Canterbury, in New Zealand. She has a MA (Hons) from the University of Auckland (NZ), and a LLB from the same University. She has been a law librarian for 30 years, in law firms (large and small), in two academic law libraries, and in a courts library – all in New Zealand and Australia. Most of that time has been spent in academe. She has championed the teaching of legal research skills to law students, and has also taught legal practitioners and non-law librarians. She has participated in teaching the Law Library module offered by the Library & information studies Department at Victoria University of Wellington each time this elective has been offered. She is principal author of Legal Research and Writing in New Zealand, by Margaret Greville, Scott Davidson and Richard Scragg, Wellington NZ, LexisNexis Butterworths, 2000. She is presently the National Secretary of the NZ Law Librarians Group (NZLLG), and served on the NZLLG 2000 Conference committee. She has written and spoken at conferences on legal research skills education and on NZ official information, and has facilitated workshops for the NZLLG.

New Zealand is a constitutional monarchy. The Crown or monarch is Queen Elizabeth II, but for most purposes, she is represented in New Zealand by a Governor General. The role is largely ceremonial, but there are occasions when the gubernatorial role carries with it quite wide-ranging powers in certain situations, such as when a government loses a confidence vote in respect of appropriation and supply. http://www.elections.org.nz/elections/esyst/index.html.

New Zealand has a responsible and representative government. Until 1996 the government was elected by a ‘first past the post’ system – ie, whichever party gained the largest number of seats in a general election was invited to form the government for the next three years. 1996 was New Zealand’s first election under the new MMP (Mixed Member Proportional Representational) system. The term of government remains at three years.

An exception to the ‘pure’ form of this type of government is the cluster of seats reserved for voters who are on the Maori electoral roll. The number of seats set aside for those who identify themselves as Maori voters is adjusted from time to time in the same way as for the general roll to reflect the numbers on it. Citizens of Maori descent can choose whether to be on the Maori or General roll: http://www.elections.org.nz/elections/esyst/mroll.html.

It operates as a unitary state, and not as a federal system like Australia or Canada.

It is unicameral, that is, there exists in our Parliament only a House of Representatives, with no Upper House.

It does not have a written constitution, in the sense of a single entrenched legislative instrument spelling out the powers of the various arms of government

It does have a number of constitutional documents which together spell out some of the rights of citizens, while other civil rights are safeguarded by the operation of common law. The New Zealand politicssource book, 2d ed by Stephen Levine with Paul Harris, 1999 offers in its table of contents a very clear outline of New Zealand’s constitutional documents.

http://www.courts.govt.nz/ In the New Zealand system, appeals still lie to the Privy Council (which sits in London) in some circumstances, so this advisory body is still effectively our highest court. Although the NZ Court of Appeal is still bound by the Privy Council, the present government has begun moves to abolish appeals to the Privy Council, and to establish a domestic court of final appeal – the Supreme Court: http://www.beehive.govt.nz/ViewDocument.cfm?DocumentID=13424.

At present, the Court of Appeal is in most cases the court of final jurisdiction. This Court sits in Wellington, New Zealand’s capital. Next down in the hierarchy is the High Court of New Zealand, with seats in main centres throughout the country. Finally in this general court system is the District Court, usually the court of first instance for most matters, and these courts are to be found in most towns and cities in New Zealand. The respective jurisdictions of the High Court and the Court of Appeal are spelt out in the Judicature Act 1908, last reprinted in 1988 (and very heavily amended since that date). The jurisdiction of the District Court is enacted in the District Courts Act 1947, last reprinted in 1992.

In addition to these courts of general jurisdiction, there are also a number of courts of special jurisdiction, such as the Maori Land Court, the Maori Appellate Court, the Environment Court, the Family Court, and the Youth Court. The two latter are Divisions of the District Court. The Judicature Act also provides for the creation of a Commercial List in High Court Centres, and the first of these was established in Auckland.

In addition to the various courts, there is quite a large number of Administrative Tribunals that exercise judicial power, while there is also a bewildering array of Authorities, Commissions, Ombudsmen, and Boards that exercise statutory decision-making powers. A truly excellent resource for those who wish to unravel this knotty tangle is the directory provided by the University of Waikato’s Law Library on its web pages: http://www2.waikato.ac.nz/lawlib/decisions/menu.html.

This web site also contains details of where decisions of the various decision-making bodies may be obtained.

The whole body of existing English law, both legislation and common law, as well as the English constitutional conventions, was received into New Zealand on 14 January 1840. For some time, the Parliament at Westminster legislated for New Zealand, but from 1865, New Zealand received limited legislative powers of its own. In 1931 the United Kingdom Parliament passed the Statute of Westminster, to facilitate a move towards independence for the Dominions (former colonies) by removing the limitations on their legislative powers. In 1947 New Zealand passed the Statute of Westminster Adoption Act and accepted full responsibility for its own destiny.

Until very recently, New Zealand continued to look to the mother Parliament at Westminster for sources of its own legislation, and to the superior English courts for precedents in its own courts. House of Lords and (English) Court of Appeal decisions are still highly persuasive, and English decisions are still often cited in New Zealand courts. However, especially in the last 20 years, New Zealand has looked further afield for legislative models – particularly in the more commercially flavoured subject areas. For example, our Commerce Act and Fair Trading Act are modelled directly upon the Australian Trade Practices Act, which in turn looks to U.S. models in the American antitrust laws. Our latest Companies Act is based upon a Canadian model, as is our Consumer Guarantees Act. On the whole, we now look more often to North America than to the United Kingdom for sources of legislation.

New Zealand courts will consider authorities from a variety of other common law jurisdictions, especially Canada, Australia, the United Kingdom, and the USA. As a consequence, New Zealand lawyers are accustomed to researching the law across a number of jurisdictions.

There is an inexorable drive towards the web in most areas of New Zealand legal information, and strong competition between publishers in this matter. Unfortunately, this does not always lead to free sources of primary or secondary legal information. There is no ‘magic bullet’ – no single web site where you can hope to pick up New Zealand legal information for free. There is some free information available, but on the whole, New Zealand has embraced the ‘user pays’ philosophy perhaps a little too enthusiastically in this respect.

The Ministry of Foreign Affairs and Trade conducts the Government’s business with foreign governments and international organisations, but its web site is opaque: http://www.govt.nz/aghome.php3?id=19.

New Zealand is signatory to a large number of multinational treaties. These are to be found in the New Zealand Treaty Series, published as part of the Appendix to the Journal of the House of Representatives and also as a separate series by Legislation Direct. Treaties and Conventions are binding on New Zealand courts when ratified and legislated into domestic statutes, but they may also be persuasive as a matter of statutory interpretation even when not ratified: in construing a piece of legislation in the event of ambiguity, the court will deem that Parliament would not have chosen to legislate contrary to the spirit of an international treaty. There is currently no online source of the New Zealand Treaty Series. There is also no easy access to the large number of bilateral treaties to which NZ is signatory. There is a good paper index to New Zealand treaties published in 1996 that indexes bilateral as well as multinational treaties: New Zealand Consolidate Treaty List (Wellington: NZ. Ministry of Foreign Affairs and Trade, 1996, also issued as A.263 in the series, Appendix to the Journal of the House of Representatives)

At present, the only official version of the New Zealand statutes is the paper version, although this is likely to change in the not-too-distant future: see below. Legislation is passed by the House of Representatives after passing through three Readings and then being assented to by the Governor General (though this last requirement is largely a matter of form). Acts are officially published by Legislation Direct initially in pamphlet form, while bound volumes of statutes containing all the Acts passed in that year are published annually. Statutes are only reprinted occasionally, when the number of amending Acts becomes so large that reading a principal Act along with all its amendments becomes unwieldy. The statute books are kept up to date by a homespun system of manual annotation involving the physical crossing out of repealed sections and insertion of slips of paper to indicate amendments. This ritual is carried out twice a year, but only for those sets of statutes maintained in New Zealand. Brookers, a legal publisher, carries out the process. In other jurisdictions, and also in many New Zealand law libraries, an alternative system is available, provided by a rival publisher, Butterworths. This consists of a series of looseleaf volumes containing both statutory and case annotations kept up to date as new amendments are passed.

Progress on this front since the last time this article was published (over two years ago) will have left nail-biters with raw stumps for fingers. Unlike most of its common law cousins, New Zealand at present does not offer an especially helpful free online access to legislation. It is true that New Zealand statutes may be browsed free – http://www.gplegislation.co.nz/acts.html – on the Knowledge Basket web site – http://www.knowledge-basket.co.nz/, but as the web site warns: ‘Please Note: The GP Legislation Acts and Regulations are unconsolidated! – this means it is not obvious whether an Act or Section of an Act or a Regulation you are reading is currently in force, or whether it has been amended or even repealed by subsequent Acts or Regulations.’

The promise of free access to current consolidated New Zealand legislation has still not been realised, although a number of important decisions have been taken. Anyone who is interested in tracing the slow history of this movement should look at the web site of our Parliamentary Counsel Office: http://www.pco.parliament.govt.nz/. This project is now at a stage that‘involves implementing the new systems and processes that will make authoritative, accurate, and up-to-date versions of New Zealand legislation (including Bills) available without charge, through the Internet. This is now expected to be completed by early 2003.’

Other Electronic Legislation

There are presently three digital versions of New Zealand legislation available. Apart from the unconsolidated GP Legislation database on the Knowledge Basket (see above), there are two commercial versions, neither deriving its data from the original source.

They are not derived from the original source of the official print version, but are re-keyed.

They consist of consolidated legislation, that is, all amending Acts are substituted for the repealed sections they replace. This makes these two databases much easier to use, as all amendments are built in to the principal Acts.

They are ‘value-added’; that is, each version is enhanced by being peppered with hypertext links leading the reader to related secondary legislation, and from sections of an Act to relevant case law in one or more case law database.

They are not free to use. Subscription rates are indicated on the respective web pages.

The ‘official’ series of law reports in New Zealand is the New Zealand Law Reports 1883 -, published by LexisNexis Butterworths (New Zealand). These are also available by subscription in digital form: on CD ROM (from 1958 -); on LEXIS; or online: http://www.lexisnexis.com.au/nz/

For an excellent and up to date historical survey of New Zealand law reports, see: Edwards, Alan, ‘New Zealand Law Reports: A Bibliographic Survey’ (2002) 10 Australian law Librarian 37.

There is also a flourishing trade in unreported decisions. These consist of the transcripts of decisions as they are issued by the various courts and tribunals, and before they are reported (although by far the majority of New Zealand court decisions are not reported at all). These are available from the originating court or tribunal, or from a number of agencies, such as Judgments Unlimited in Wellington. Selections of unreported decisions – mainly from the superior courts – are digested in The Capital Letter and Butterworths Current Law, published weekly and fortnightly respectively. Unreported decisions are also digested and subsequently noted up on the databases LINX and Briefcase (see below).

Electronic Case Law

Most of the report series that are still current are available electronically as well as in hard copy, and just a few are available only electronically. They are mostly offered on the web sites of the two remaining major legal publishers in New Zealand, Brookers and LexisNexis Butterworths. The digital versions have the advantage not only of good search facilities, but also being able to be searched in tandem with other databases on the same platform, and having hypertext links to related material.

There are also two databases dating from around 1985 that provide bibliographic details of unreported decisions of the superior courts. These are LINX and Briefcase. Although both started life as independent entities, in the last two years both have been further developed by the rivals Brookers (who have bought Briefcase) and LexisNexis Butterworths (who have a joint venture arrangement with the LINX committee). Both now offer a large number of full text decisions attached to the original bibliographic records as pdf files, and both have links to cited legislative sections. LINXPlus is an enhanced version of LINX that also allows hypertext linking to full text reported versions of cases on LexisNexis Butterworths Online. Each may be searched (on the two respective web sites) simultaneously with other selected case law databases.

It seems that there may still be a measure of judicial unease at the prospect of unmediated public access to all judicial decisions. For one judge’s view, see Harvey, D, ‘Public Access to Legislative information and Judicial Decisions in New Zealand: Progress and Process’, (2002) 10 Australian Law Librarian, 48. However, Findlaw (NZ) http://www.findlaw.co.nz/ offers a good free current awareness service by offering access to judgments received within the last seven days from a selection of courts, including Environment, Employment and Family as well as the courts of general jurisdiction.

Decisions of a number of inferior Courts, Tribunals, Statutory Authorities, and other such bodies in New Zealand which make legal or quasi-legal decisions and reports are freely available. A good place to start is the University of Waikato Law Library web site: http://www.waikato.ac.nz/library/resources/law/dec­­_isions.shtml – although it must be cautioned that at the time of writing the site was last updated in July 2001.

The standard text on the New Zealand Parliament is Parliamentary practice in New Zealand, 2d ed, by David McGee, Wellington, NZ, GP Publications, 1994. Some of the content relating to the legislative process is now out of date because of the advent of MMP and a change to Standing Orders, but it remains authoritative otherwise. The parliamentary web site is a good source of information about Parliament, and on its day-to-day activities: http://www.parliament.govt.nz . The Parliamentary Bulletin is an invaluable publication, issuing weekly while Parliament is sitting, that tracks the progress of bills through the House, activities of Select Committees, and other parliamentary information.

The New Zealand Government’s web pages: http://www.govt.nz. Navigation around these pages is generally straightforward, except that information about government departments is rather obscurely tucked away under a button labeled ‘agency contacts.’

Local Government

Local government websites have proliferated over the last two years, and the NZ government website offers a good access point for all of them, as well as general interest on this subject: http://www.govt.nz/localgov/index.php3

The Legal Profession

Law Societies

The New Zealand Law Society maintains a web site at:http://www.nz-lawsoc.org.nz. This is a useful source of information to members, to the public who may wish to make a complaint about a lawyer, and to foreign nationals who may wish to practice in New Zealand. The Rules of professional conduct for barristers and solicitors and information about fees and levies may be found here.

The Auckland District Law Society, the largest of over 20 district law societies, maintains its own web site at:http://www.adls.org.nz. One of the more useful features of this site is an electronic Whiteboard maintained by the ADLS Library. Postings are made here about current legal events, including recent ‘hot’ cases. The Rules of professional conduct for barristers and solicitors are also available on this site.

Law firms in New Zealand make good use of their web sites for advertising their specialities, for recruiting, for publishing their newsletters (a very good source of up-to-date commentary on recent changes to the New Zealand legal landscape), and for providing a safe intranet to share with major corporate clients. Little e-law has so far emerged on these pages, but it will probably not be long in emerging.

A good source of information on legal web sites in New Zealand is Tarantula, the Knowledge Basket’s research spider. You can use this search or browse either law firm or general New Zealand legal web sites: http://www.tarantula.co.nz/legal/search.html

Law Library Management Ltd, publishers of the electronic case law digest database Briefcase.

The LINX Committee of the three largest District Law Society Libraries (Auckland, Wellington, Christchurch), publisher of LINX database (bibliographic case law and legal journal articles)

Oxford University Press – at that time, OUP had a NZ presence in Auckland.

NZ legal writers also had the freedom to publish with LBC (Australia), Sweet & Maxwell (U.K.).

Things have changed. Readers who are familiar with the editorial article by Joe K. Stephens, ‘The Principles of Gorilla Management’ (2000) 18 Legal Reference Services Quarterly no. 2, 1, will understand when I say that we in tiny New Zealand are faced with the need to manage not one, but two gorillas – the Thomson Group, in the form of its local manifestation, Brookers, and the recently rebranded LexisNexis group of companies, in the form of LexisNexis Butterworths. The picture now looks like this:

LexisNexis Butterworths has bought out Status Publishing, and has a joint venture arrangement with LINX, forming LINXPlus

CCH remains separate

Brookers has bought out Briefcase and DSL

OUP has retreated to Australia, although it does still publish NZ authors.

The Thomson companies (LBC, S & M) are no longer available to NZ legal writers as an alternative to Brookers.

A number of web sites which offer online current awareness services either of a general nature or of particular interest to lawyers can be located among the websites listed at: http://library.canterbury.ac.nz/law/awarelaw.shtml. Most of them are free. Findlaw NZ http://www.findlaw.co.nz/ is particularly helpful as a source of legally flavoured news and other resources and for recent cases. The Knowledge Basket http://www.knowledge-basket.co.nz offers a link to Tarantula http://www.tarantula.co.nz/ which provides a spider that searches New Zealand legal, medical, educational, scientific, and legal information on the web. Within Legalsearch you can also browse lists of law firm and other legal sites.

Many New Zealand law firms offer newsletters free to members of the public, and also publish them on their web sites. This is a very good source of information about very recent happenings on the New Zealand legal scene. See above, and use Tarantula for sources of these.

The parliamentary bulletin. Wellington, Office of the Clerk of the House of Representatives, 1986 – This issues weekly when Parliament is in session. It is a good tool for keeping up to date with the passage of legislation through the House.

Law Firm Newsletters

New Zealand law firms produce newsletters which are often an excellent first source of brief commentary on New Zealand legal happenings. See immediately above under Online sources, and under the Legal profession for URLs.

Business & Politics

Trans Tasman is a privately circulated weekly popular with business and corporate lawyers interested in public affairs on both sides of the Tasman.

Legal Reference Tools

A number of these have been noted in other parts of this article, but it may be helpful to draw some basic works together in one place. Many are in print only. Characteristically, many are disappointingly limited by failing to be comprehensive in their cover of New Zealand legal information published by competitors.

Australian and New Zealand Citator to UK Reports (Chatswood, N.S.W.: Butterworths, 1993-)

The Abridgement of New Zealand Case Law (Wellington: Butterworths, 1963-) this is limited in its application by digesting only cases reported in the New Zealand Law Reports.

Fong, C. and Edwards, A., Australian and New Zealand Legal Abbreviations (Sydney: Australian Law Librarians Group NSW Division, 1995). A new edition of this extremely useful work is planned for publication later this year.

The Laws of New Zealand (Wellington: Butterworths, 1993-). This legal encyclopaedia is available in looseleaf, CD, and online formats. In its online incarnation links between it, relevant legislation and case law, and comparable Australian commentary in Halsbury’s Laws of Australia are useful features.

Butterworths Annotations of New Zealand Statutes (Wellington: Butterworths, 1929-). This work, especially the earlier volumes, is invaluable when grappling with the need to trace current legislation back to earlier sources. It provides both statutory and case annotations to New Zealand statutes from the times when we first began legislating and litigating up the present.

Students at all five law schools in New Zealand are taught legal research skills as part of the curriculum. In all five, this is mandatory, but stands outside the LLB syllabus. In addition, the larger law firms run comprehensive training programmes of instruction for incoming graduates, to acclimatise them to the particular resources and requirements of that firm. Law students and young lawyers in New Zealand are usually encouraged to begin by looking first at commentary, especially a standard current textbook on the subject, or the relevant section in a legal encyclopaedia, before proceeding to primary sources.

There are now two books on legal research in New Zealand: Greville, M, Davidson, J.S., and Scragg, R., Legal Research and Writing in New Zealand (Wellington: Butterworths, 2000); and Wainwright, B., E-research for New Zealand Lawyers (Wellington: Butterworths, 2001)

The following list comprises works that are available either as hard back or limp bound editions. It is by no means comprehensive. For example, it excludes loose leaf services, and works that are only available in digital format. See the publishers’ web pages and catalogues for more complete details.

Guidebook to New Zealand companies and securities law , 7th ed by Andrew Beck and Andrew Borrowdale, Auckland, CCH, 2002.

Contract

(The common law of contract still runs in New Zealand, but has been greatly modified by a number of contract statutes.) Law of contract in New Zealand , 2nd ed by J F Burrows, Jeremy Finn, and Stephen M D Todd, Wellington, Butterworths, 2002. An introduction to the law of contract in New Zealand , 3d ed, by Maree Chetwin and Stephen Graw. Wellington: Brookers, 2001.

Criminal Law

( New Zealand criminal law is codified, and is related to that operating in Canada, and in the Australian states Queensland and Western Australia) Principles of criminal law, 2nd ed by A P Simester and Warren Brookbanks, Wellington, Brookers, 2002.

The abridgement of New Zealand case law. This does not really fulfil the requirements of a general legal digest. It digests only cases reported in the official series, the New Zealand Law reports – which the indexes to that series do just as well.

Butterworths family law in New Zealand , 10th ed. Wellington, Butterworths, 2001.

Health Law

Health care and the law , 2d NZ ed by Sue Johnson, general editor. Wellington: Brookers, 2000 Mental health law in New Zealand , by Sylvia Bell and Warren Brookbanks. Wellington: Brookers, 1998.

Land Law

(New Zealand title to land is governed by the Torrens System, which also operates in Australia and Canada.) Butterworths land law in New Zealand, By G W Hinde and D W McMorland, Wellington, Butterworths, 1997. Guide to New Zealand land law , 2nd ed by Andrew Alston et al, Wellington: Brookers, 2000.

The Laws of New Zealand a multi-volume loose-leaf encyclopaedia that began publication in 1993. All chapters have not yet been published. Available in paper, on CD ROM, and online via Butterworths Online (Australia) .

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